UACES Facebook North Dakota judge blocks new WOTUS rule for 24 states, including Arkansas
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North Dakota judge blocks new WOTUS rule for 24 states, including Arkansas

“What’s going to happen next in WOTUS is a little tricky” — Brigit Rollins

By Mary Hightower
U of A System Division of Agriculture

April 13, 2023

Fast facts:

  • Federal court in North Dakota issues injunction
  • New EPA rule defining waters of the U.S. went into effect March 20

(368 words)

(Newsrooms: With file art of Rollins )

FAYETTEVILLE, Ark. — A federal judge in North Dakota has issued an injunction against the Environmental Protection Agency’s most recent rule defining waters of the United States in a case covering 24 states, including Arkansas.

North Dakota U.S. District Court Judge Daniel Hovland issued the injunction on Wednesday.

Brigit Rollins, NALC staff attorney
Brigit Rollins of the National Agricultural Law Center says the WOTUS case is mirroring what happened in 2015.

In February, Arkansas Attorney General Tim Griffin joined the North Dakota case. In the order granting the preliminary injunction, the North Dakota court found “that the new 2023 Rule is neither understandable nor ‘intelligible,’” and that it “raises a litany of other statutory and constitutional concerns.”

Defining waters of the U.S., or WOTUS, has been a struggle for decades. The definition is critical to enforcement of the Clean Water Act.

The latest version of the rule went into effect March 20. However, implementation of the rule had already been halted in two states by an injunction issued by a Texas federal judge. The North Dakota ruling brings to 26 the number of states where the new rule is on hold. A third case in a Kentucky federal court saw the suit being dismissed last week.

“This is a very interesting time in the WOTUS-sphere,” said Brigit Rollins, a National Agricultural Law Center staff attorney.

That “the rule has been enjoined in all of these various states now does not mean that the rule has been overturned,” “Litigation is still going to continue and in both of these cases right so the injunction is just kind of that first opening salvo.

“The procedural next step is to continue litigating the merits of the case, and that could take months or years. It’s hard to say,” she said.

Déjà vu all over again

Looming over everything is an expected decision from the U.S. Supreme Court in Sackett vs. EPA. While the case does not directly challenge WOTUS, it will have a direct impact on how WOTUS is defined.

“What’s going to happen next in WOTUS is a little tricky,” Rollins said. "We've been here before in 2015 when the 2015 WOTUS rule was enjoined in a little over half the states.

“We probably won’t have a clear idea of how the EPA plans to proceed or what happens next until the Sackett decision comes out,” she said.

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About the National Agricultural Law Center
The National Agricultural Law Center serves as the nation’s leading source of agricultural and food law research and information. The NALC works with producers, state and federal policymakers, Congressional staffers, attorneys, land grant universities, and many others to provide objective, nonpartisan agricultural and food law research and information to the nation’s agricultural community.

The NALC is a unit of the University of Arkansas System Division of Agriculture and works in close partnership with the USDA Agricultural Research Service, National Agricultural Library.

About the Division of Agriculture

The University of Arkansas System Division of Agriculture’s mission is to strengthen agriculture, communities, and families by connecting trusted research to the adoption of best practices. The Division of Agriculture conducts research and extension work within the nation’s historic land grant education system through the Agricultural Experiment Station and the Cooperative Extension Service.

The Division of Agriculture is one of 20 entities within the University of Arkansas System. It has offices in all 75 counties in Arkansas and faculty on five system campuses.

The University of Arkansas System Division of Agriculture offers all its Extension and Research programs to all eligible persons without regard to race, color, sex, gender identity, sexual orientation, national origin, religion, age, disability, marital or veteran status, genetic information, or any other legally protected status, and is an Affirmative Action/Equal Opportunity Employer.

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Media contact: Mary Hightower; @AgInArk